Document Type

Article

Publication Date

2011

Center/Program

Center for International Commercial and Investment Arbitration

Center/Program

European Legal Studies Center

Abstract

European Union ("EU" or "Union") law and the law of international arbitration have traditionally occupied largely separate worlds, as if arbitral tribunals would rarely be the fora for the resolution of EU law claims and as if EU law, in turn, had little concern with arbitration. For several reasons, this pattern has recently been altered, although the relationship between EU law and international arbitration law is at present anything but settled. From the present perspective, the past looks like an age of innocence, for as these two worlds have begun to intersect, they have not done so entirely harmoniously.

Part I of this Essay traces the traditional divide between EU law and the law of international arbitration. This Essay then identifies two developments, both emanating from the EU-law side of the equation, that are in the process of altering this landscape. The first, discussed in Part II, is the prospective amendment on arbitration to the Brussels Regulation on Jurisdiction and Enforcement of Judgments; the second, discussed in Part III, is the transfer of exclusive competence over policy in the area of foreign direct investment, itself a developing arena of international arbitration, to the EU from the Member States. Because both developments are so nascent, it is difficult to gauge the magnitude of the problems they may create, much less delineate the steps required to mitigate them. At this early stage, this Essay simply draws attention to the new realities and to the nature of the challenges they present.

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